SZATH v Minister for Immigration
[2006] FMCA 80
•19 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZATH v MINISTER FOR IMMIGRATION | [2006] FMCA 80 |
| MIGRATION – Application to summarily dismiss the proceedings seeking to set aside the decision of a delegate of the Minister – where the application is an abuse of process. |
| Migration Act 1958 (Cth) |
| Applicant S1747/2003 v Minister for Immigration [2006] FMCA 35 SZDJA v Minister for Immigration [2006] FMCA 38 |
| Applicant: | SZATH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2777 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 January 2006 |
| Date of Last Submission: | 19 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 January 2006 |
REPRESENTATION
| Applicant in Person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The substantive application dated 29 September 2005 is dismissed.
Applicant to pay the respondent's costs assessed in the sum of $2,250.
No further application shall be accepted from this applicant in respect of the decision of the delegate dated 6 June 2002 or the decision of the Refugee Review Tribunal made on 19 May 2003 without leave of the court. This order does not extend to an appeal against this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2777 of 2005
| SZATH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is the third application to dismiss summarily proceedings seeking to set aside the decision of a delegate of the Minister that I have dealt with this week. I heard the matter of Applicant S1747/2003 v Minister for Immigration [2006] FMCA 35 on 12 January, the matter of SZDJA v Minister for Immigration [2006] FMCA 38 on 16 January and I am hearing this matter today. The cases are identical. The grounds of application appear to be identical. In each case the applicant alleges that he did not receive a copy of the delegate's decision. In both SZDJA and the case presently before me the applicant spoke in response to the Minister's submissions and made no reference whatsoever to the delegate's decision but referred only to that of the Tribunal. There is clearly an abuse going on whereby no sooner have applicants failed before the High Court of Australia than they file this type of application in this court which this court has said in the past is a baseless abuse of process. Perhaps the most disturbing thing is the lack of understanding by the people who appear in this court as to what is has been written in their name. The applicant in this case obviously speaks very little English. He is being assisted most assiduously by an interpreter. He cannot read the grounds of application. He does not understand them. He says they were written by a friend. Obviously his friend is the same as the friend of the other two applicants that appeared before me during the earlier parts of this week. He is a friend indeed.
As I said in Applicant S1747/2003:
“In a well reasoned judgment SZGKO and Another v The Minister for Immigration [2005] FMCA 1254 Federal Magistrate Barnes explained why such an application constituted an abuse of process of the court. I do not think it is necessary for me to repeat what her Honour said but I would note that it is based upon substantive authority such as Zubair v The Minister for Immigration [2004] 211 ALR 261.”
The situation in this case is identical.
Although the applicant was unable to speak to any of the grounds of his application I have considered them and make the following comments. Ground one refers to the fact that the decision was not notified to the applicant. The applicant cannot tell me whether this is in fact the case and I believe it is not so. The applicant made a prompt application for review of the delegate's decision to the Refugee Review Tribunal. It is unlikely that he would have been able to do that if he had not obtained the decision itself. Also, in the second paragraph on the first page of his application the applicant acknowledges receipt of the decision. This leads me to ponder that the Department may like to suggest to the Attorney General’s Department that a further amendment to the Migration Act 1958 (Cth) be enacted requiring applicants to swear to the truth of the statements contained in their grounds of application in a manner similar in form to the required affidavit in Statements of Claim in the Supreme Court of New South Wales and other places. That, together with a large warning about the penalties for perjury, might assist in reducing the number of cases such as the one before me.
The second allegation is that the delegate did not have the jurisdiction to give the decision. As this allegation is totally unparticularised and is not the subject of any evidence it cannot be accepted. The third ground is that the decision was infected by an error of law and was an improper exercise of the power conferred by the Migration Act 1958 (Cth). Once again no particulars were provided and the court is unable to see how that assertion can be made out from a perusal of either the delegate's decision or that of the Tribunal. The fourth ground of application is an attempt to get around the long delay between the handing down of the delegate's decision and the application to this court. As I said in Applicant S1747/2003:
“The applicant was unable to see an error in the decision of the delegate within that time whilst he was taking part in a number of class actions and other legal processes relating to his application and there would be strong grounds for a court to refuse any review on a discretionary basis.”
In this case the delay is approximately three years. This is a slightly shorter time but the applicant again said nothing was wrong with the delegate's decision once he had made that point to the Refugee Review Tribunal. The court would be entitled to dismiss this application on discretionary grounds alone. The final ground of application is a defence to the suggestion that the application itself is vexatious or an abuse of process. Certain cases are quoted. Those cases are the same as the cases quoted in Applicant S1747/2003 and, as far as I can recall, SZDJA. They are all cases in which the delegate's decision was not the subject of review by the Tribunal.
I am quite satisfied that the Minister's application is appropriate, timely and should be granted. None of the matters raised by the applicant satisfy me that his application has any prospects of success and it is therefore best if it be dismissed forthwith. I dismiss the substantive application dated 29 September 2005 and I order that the applicant pay the respondent's costs which I assess in the sum of $2,250. I order that no further application shall be accepted from this applicant in respect of the decision of the delegate dated 6 June 2002 or the decision of the Refugee Review Tribunal made on 19 May 2003 without leave of the court. This order does not extend to an appeal against this order.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
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